U.S. v. Moreland, CRIM.A.2:04 CR 00142.

• Decision Date: 27 April 2005
• Docket Number: No. CRIM.A.2:04 CR 00142.,CRIM.A.2:04 CR 00142.
• Citation: 366 F.Supp.2d 416
• Court: U.S. District Court — Southern District of West Virginia
• Parties: UNITED STATES of America, Plaintiff, v. Brian A. MORELAND, Defendant.

366 F.Supp.2d 416

UNITED STATES of America, Plaintiff, v. Brian A. MORELAND, Defendant.

No. CRIM.A.2:04 CR 00142.

United States District Court, S.D. West Virginia, Charleston Division.

April 27, 2005.

Michael H. Spencer, U.S. Attorney's Office, Charleston, WV, for Plaintiff.

Matthew Anthony Victor, Victor Victor & Helgoe, David R. Bungard, Mary Lou Newberger, Charleston, WV, for Defendant.

MEMORANDUM OPINION

GOODWIN, District Judge.

The defendant in this case was sentenced on April 21, 2005, to a term of imprisonment of ten years to be followed by an eight-year term of supervised release. The reasons for this sentence are fully set forth herein.

I. Background

The pertinent offense conduct is as follows. On July 16, 2004, the defendant sold 5.93 grams of cocaine base (crack) to an undercover police officer for $450. The West Virginia State Police arrested the defendant the next day, and found an additional 1.92 grams of cocaine base on the defendant at the time of his arrest.

On December 7, 2004, Brian Moreland was convicted at trial of two violations of 21 U.S.C. § 841(a)(1). Under count one of the indictment, and based on the events of July 16th, he was convicted of distributing five grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1), which carries a statutory penalty of at least 5 and not more than 40 years in prison. Under count two of the indictment, and based on the events of July 17th, Mr. Moreland was convicted of possessing with the intent to distribute 1.92 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), which carries a maximum penalty of 20 years in prison.

II. Sentencing Procedure

In United States v. Gray, 2005 WL 613645 (S.D.W.Va.2005), I outlined my approach to criminal sentencing in light of the Supreme Court's decision to render the federal Guidelines advisory in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Gray opinion explained my resolution of several legal issues that lingered in Booker's wake, including ex post facto concerns, confrontation clause issues, and the appropriate role of the burden of proof at sentencing hearings under the advisory Guideline regime. In general, I determined that a three-step procedural process would best fulfill the sentencing mandate of the remedial Booker majority opinion. These steps are summarized as follows.

First, at each sentencing, I calculate the advisory Guideline range in exactly the same manner as I calculated the Guideline range under the mandatory regime, including any potential upward or downward departures. Second, I consider the sentencing factors listed under 18 U.S.C. § 3553(a). Finally, I determine an appropriate sentence based on a careful evaluation of the Guideline advice and each of the § 3553(a) factors.

Importantly, while I respect the advice of the Guidelines and give it serious consideration, I do not view that advice as carrying greater weight than any of the other § 3553(a) factors. That is, I do not view the advisory Guideline range as being "presumptively reasonable." I note that my sister district courts are split on the issue of how much deference to give the Guideline recommendation. See, e.g., Simon v. United States, 2005 WL 711916 (E.D.N.Y.2005) (noting that "district courts have differed as to the weight to be given to the formerly mandatory Guidelines" and comparing several different approaches). I have taken the position, articulated in United States v. Ranum, 353 F.Supp.2d 984 (E.D.Wis.2005) and other cases, that the proper treatment of the Guideline advice is to balance it with the other sentencing factors found in § 3553(a). I find this approach persuasive for two primary reasons. First, § 3553(a) itself accords no heightened importance to the Guidelines. Instead, it directs sentencing judges to consider various other factors, including several factors (such as age, education, and health) that are not thoroughly considered by the Guidelines themselves. Second, to treat the Guideline advice as presumptively reasonable is the equivalent of imposing a "de facto mandatory sentence" on a defendant. Simon, 361 F.Supp.2d at 40. A return to a mandatory Guideline sentencing regime would run squarely afoul of the merits majority in Booker.

At Mr. Moreland's sentencing, I first calculated his advisory Guideline range. I then analyzed each of the other § 3553(a) factors. Finally, after carefully taking all of this advice into account, I determined an appropriate sentence. I will summarize each of these procedural steps in turn.

III. Advisory Guideline Calculations

The November 1, 2004, edition of the United States Sentencing Commission Guidelines Manual was used in this case. First, the two counts of conviction were grouped pursuant to U.S.S.G. § 3D1.2(d), because both charges relate to cocaine base. The base offense level for a violation of 21 U.S.C. § 841(a)(1) is found in § 2D1.1(a)(3) and the Drug Quantity Table in § 2D1.1(c). Those sections provide for a base offense level of 26 if the offense involved at least 5 but less than 20 grams of cocaine base. The defendant's offenses of conviction involved a total of 7.85 grams of cocaine base. Accordingly, I found the base offense level to be 26.

I next examined the potential offense level adjustments and enhancements in this case, and found that only one was applicable. Specifically, I found that the defendant qualified as a Career Offender under § 4B1.1. That section states, in pertinent part:

(a) A defendant is a Career Offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

Mr. Moreland is 31 years old; his instant offense is a felony controlled substance offense; and he has two prior felony controlled substance offenses. Specifically, the first prior conviction occurred on July 10, 1992, when the defendant pled guilty to delivering a marijuana cigarette to an inmate in a prison. He was sentenced to 60 days in custody and placed on 60 months of probation. The defendant's second prior felony controlled substance offense occurred on October 21, 1996, when he pled guilty to possessing 6.92 grams of cocaine base. Mr. Moreland received a suspended sentence of incarceration for that offense and was placed on lifetime probation. Both of these sentencing dispositions occurred in the Michigan state court system.

The defendant's classification as a Career Offender had a drastic effect on his Guideline offense level. Pursuant to the table in § 4B1.1, the defendant's offense level jumped from 26 to 37, an increase of 11 points. Similarly, his criminal history level was re-adjusted. The defendant was first assessed five "real" criminal history points, which places him in Category III. Section 4B1.1(b), however, provides that "[a] career offender's criminal history category in every case under this subsection shall be Category VI." Mr. Moreland's criminal history therefore doubled from Category III to Category VI by virtue of his Career Offender status. Category VI is normally reserved for defendants with 13 or more criminal history points. A total offense level of 37 and a criminal history category of VI established an advisory Guideline range for Mr. Moreland of 360 months to life in prison. Before his arrest for the instant offense, he had cumulatively served less than six months in jail for his previous convictions.

IV. 18 U.S.C. § 3553(a) Factors¹

A. The Nature and Circumstances of the Offense and the History and Characteristics of the Defendant

The instant offense did not involve a large amount of cocaine base. Specifically, the defendant sold 5.93 grams of cocaine base and possessed an additional 1.92 grams of cocaine base, for a grand total of 7.85 grams. The quantities of drugs involved fall somewhere between mere user amounts and heavy trafficking quantities. For the sake of perspective, two "Tic Tacs" weigh one gram. The amount of cocaine base involved in this offense therefore equates to sixteen Tic Tacs. The defendant was clearly not in the business of distributing kilos of cocaine base.

Brian Moreland's offense involved no violence or threat of violence. He possessed no firearm or other weapon, and threatened no one. Further, neither of his two prior felony controlled substance offenses involved violence or firearms. If the instant offense had involved a gun, the nature and circumstances of the offense would certainly have been more dangerous to society. Although the defendant was clearly engaged in the distribution of cocaine base, the non-violent nature and circumstances of the instant offense must be considered as a mitigating factor.

Brian Antoine Moreland is a 31 year-old black male. He was born in Detroit, Michigan on April 12, 1973, and is in good health. His parents were never married. His father is 56 years old and still resides in Michigan, but the defendant's mother died from cirrhosis of the liver in 1999. The defendant himself is the father of one child, a twelve year-old boy who resides with his mother in Detroit. The defendant has not seen his son for a number of months and pays no child support.

Brian Moreland graduated from high school in 1991, and earned 13 college credits at a community college in Ann Arbor by the end of the summer of 1992. Since then, he has had a series of jobs, and in 2001 he returned to school to take computer courses. He has demonstrated that he has the ability and potential to become a productive member of society. He has not, however, shown a serious inclination to do so, as evidenced by his two prior convictions. Accordingly, the "characteristics of the defendant" indicate that Mr. Moreland needs the discipline of a...